Cite as NRA v. Magaw, 909 F.Supp. 490 (E.D.Mich. 1995)
National Rifle Association of America, Michigan United Conservation
Clubs, Olympic Arms, Calico Light Weapons Systems, Navegar, Inc.,
D.C. Engineering, Inc., Ammo Dump, Glenn Duncan, Charles Duncan,
James E. Flynn, James J. Fotis, Thomas L. Heritier, and Craig D.
Sandier, Plaintiffs,
v.
John W. Magaw and United States of America, Defendants.
No. 95-CV-10045-BC.
United States District Court, E.D. Michigan, Northern Division.
Nov. 22, 1995.
M. Carol Bambery, Mich. United Conservation Clubs, Lansing,
MI, James H. Warner, Michael K. McCabe, National Rifle Association,
Fairfax, VA, Gerald W. Pergande, Bay City, MI, for plaintiffs.
Andrea Newmark, Dept. of Justice-Civil Division, Washington,
D.C., Michael J. Hluchaniuk, Assistant U.S. Attorney, Bay City,
Michigan, for defendants.
AMENDED OPINION ON DEFENDANTS' MOTION TO DISMISS OR FOR SUMMARY
JUDGMENT, ON THE QUESTION OF JURISDICTION.
CLELAND, District Judge.
I. Introduction
Plaintiffs' complaint challenges the constitutionality of the
Violent Crime Control and Law Enforcement Act of 1994, which amends
the criminal provisions of the Gun Control Act of 1968, 18 U.S.C.
sections 921-930. The 1994 Amendments, which went into effect
September 13, 1994, criminalize for a ten-year period most future
manufacture, transfer, and possession of semiautomatic assault
weapons and large capacity ammunition feeding devices. The
complaint alleges that the definition of "semiautomatic assault
weapon," as contained in 18 U.S.C. section 921(a)(30), is
unconstitutionally vague; that Congress exceeded the scope of its
constitutional power by enacting the Amendments; that the
designation of prohibited firearms is arbitrary and capricious and
not rationally related to any legitimate governmental purpose; and
that the interpretation of the term "firearm" for purposes of the
grandfather provision of the statute by the Bureau of Alcohol,
Tobacco, and Firearms is arbitrary and capricious.
Defendants have moved to dismiss the complaint, alleging that
this court lacks subject matter jurisdiction because the complaint
does not present a justiciable "case" or "controversy" within the
meaning of Article III of the United States Constitution. Spe-
cifically, the defendants allege that the plaintiffs do not have
standing because they have not alleged an actual or imminent
injury, and that the matter is not ripe for adjudication because
there is no pending or impending criminal prosecution of any of the
plaintiffs based on the criminal provisions being challenged.
On August 9, 1995, the court heard oral argument on the Motion
to Dismiss or for Summary Judgment on the Question of Jurisdiction.
After review of the parties' written submissions and consideration
of the arguments presented at the hearing, the court concludes that
it lacks subject matter jurisdiction and, accordingly, dismisses
the case.
II. Background
The plaintiffs are two nonprofit gun rights corporations, two
federally licensed firearms dealers, three retired police officers,
two firearms manufacturers, an ammunition feeding device
manufacturer, and two individuals. The defendants are John Magaw,
the director of the Bureau of Alcohol, Tobacco, and Firearms
("BATF"), and the United States of America.
There is no allegation in the complaint that any plaintiff has
been or is currently being prosecuted under the statute. Rather,
Plaintiffs aver that they "desire" and "wish" to engage in certain
possibly prohibited activities but are "restrained" and "inhibited"
from doing so. Plaintiffs allege that they "are unable and
unwilling, in light of the serious penalties threatened for
violation of the statute, to obtain and possess the firearms and
large capacity ammunition feeding devices prohibited by the
statute." (para. 46). However, Plaintiffs also allege that they
"will purchase, firearms, including those on the enumerated list of
proscribed firearms." (para. 55). The complaint further avers, "If
they are prudent, and are unwilling to risk felony penalties, they
must refrain from the manufacture, transfer or possession of fire-
arms which, in fact, may be lawful." (para. 58). Plaintiffs
Olympic Arms and Calico Light Weapons Systems allege that they "in-
voluntarily changed the names of their firearms" and "involuntarily
ceased manufacturing firearms whose configuration might fit the
generic criteria definition." (para. 48).
The plaintiffs have submitted affidavits supporting the
allegations in the complaint. Two members of the National Rifle
Association, James G. Giragosian and Stefan B. Tahmassebi submitted
declarations stating that they wish to engage in certain conduct
but are inhibited from doing so by a fear of prosecution and a
possible felony conviction. Kevin M. Cunningham, another member of
the National Rifle Association, submitted a declaration stating
that he telephoned a Mr. Ed Owen of the BATF and posed to Owen a
hypothetical question whether a folding stock could be installed to
a Ruger Mini-14 rifle, a semiautomatic rifle which accepts a
detachable magazine. According to the Cunningham declaration, Owen
told Cunningham that if an individual were to install the folding
stock, he "could be prosecuted for a federal felony." Phillip C.
Martel, the president of Plaintiff D.C. Engineering, Inc.,
submitted a declaration stating, "If this ban is unconstitutional
as applied to intrastate sales, we would be ready, willing and able
to transfer such magazines [ammunition feeding devices] in intra-
state commerce to fellow residents of Michigan. Our magazines are
stamped with our name and location and could be stamped with date
of manufacture so that it would be simple to determine if anyone
did in fact transfer them out of state." Plaintiff Glenn Duncan
has submitted a declaration stating that he is "unable to ascertain
the meaning of the various restrictions," that if the ban is
invalid, he stands ready to begin at once to fulfill his customers'
requests to assemble firearms from components presented by the
customers, and that the statute "has already restricted our doing
business, limits us in the actions we can take today, and will
restrict our actions within the immediate future."
The plaintiffs have also submitted a transcript of
proceedings. in a federal criminal prosecution, United States of
America v. Corcoran, No. 88-11 (W.D.Pa. proceedings conducted April
5, 1988). It appears from a review of the portion of the trial
transcript submitted by Plaintiffs that Corcoran was being
prosecuted for unlawfully transferring a machine gun. The court
dismissed several of the counts against the defendant, finding that
the BATF was prosecuting Corcoran for transferring a weapon without
an auto sear, which BATF argued was a machine gun within the
meaning of statutes regulating the transfer of machine guns because
it could fire more than one bullet with a single pull of the
trigger, though BATF had previously ruled that a weapon without an
auto sear is not a machine gun. The plaintiffs have submitted
other documents relating to the Corcoran case, as well as
transcripts on hearings before the Senate Judiciary Committee and
a Report of the Subcommittee on the Constitution of the Senate
Judiciary Committee. Though the evidentiary value of some of
Plaintiffs' submissions to the questions of standing and ripeness
is limited, the court has nevertheless reviewed them.
III. Standard
Defendants bring their motion pursuant to Fed.R.Civ.P.
12(b)(1), lack of jurisdiction over the subject matter; Rule
12(b)(6), failure to state a claim upon which relief can be
granted; and Rule 56, for summary judgment.
Fed.R.Civ.P. 12(b)(1) authorizes a defendant to move for
dismissal based on lack of subject matter jurisdiction. A motion
under Rule 12(b)(1) may be used to attack two different types of
defects. The first is the pleader's failure to allege facts in the
complaint sufficient to show subject matter jurisdiction. The
second is the court's actual lack of jurisdiction over the subject
matter, a defect that may exist despite the formal sufficiency of
the allegations in the complaint. Wright & Miller, Federal
Practice and Procedure: Civil 2d section 1350. This motion falls
into the second category. Defendants allege that there is no
justiciable case or controversy within the meaning of Article III
of the United States Constitution. The burden of proof is on the
plaintiff, the non-moving party in this case. "Where subject
matter jurisdiction is challenged pursuant to Rule 12(b)(1), the
plaintiff has the burden of proving jurisdiction in order to
survive the motion." Moir v. Greater Cleveland Regional Transit
Auth., 895 F.2d 266, 269 (6th Cir. 1990) (citing Rogers v.
Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir.1986)). When
deciding a motion to dismiss for lack of subject matter
jurisdiction, no presumptive truthfulness attaches to the
allegations in the complaint. Rather, "the court is empowered to
resolve factual disputes when subject matter jurisdiction is,
challenged." Id. The Sixth Circuit has also ruled that where de-
fendants move for dismissal based on both Rules 12(b)(1) and
12(b)(6), the court is bound to consider the 12(b)(1) motion first,
since the Rule 12(b)(6) challenge becomes moot if the court lacks
subject matter jurisdiction. Id. (citing Bell v. Hood, 327 U.S.
678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). The same
rationale would, of course, apply to Defendants' Rule 56 motion.
Accordingly, the court analyzes Defendants' motion under
Fed.R.Civ.P. 12(b)(1).
IV. Discussion
Defendants' motion raises two issues: standing and ripeness.
Standing is concerned with who is a proper party to litigate a
particular matter, while ripeness determines when that litigation
may occur. Chemerinsky, Federal Jurisdiction, section 2.4 (1989).
There is considerable overlap between the two doctrines where, as
here, the argument that the plaintiffs lack standing rests on an
allegation that no-or insufficient-injury has occurred. In such a
situation, the court could characterize the problem as lack of
sufficient injury to these plaintiffs, (standing) or lack of
sufficient injury at-this time (ripeness). "If no injury has
occurred, the plaintiff might be denied standing or the case might
be dismissed as not ripe." Id. "[S]tanding focuses on whether the
type of injury alleged is qualitatively sufficient to fulfill the
requirements of Article III and whether the plaintiff has
personally suffered that harm, whereas ripeness centers on whether
that injury has occurred yet." Id.
In Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct.
2130, 119 L.Ed.2d 351 (1section02), the United States Supreme Court
explained that the "irreducible constitutional minimum of standing"
contains three elements: First, the plaintiff must have suffered an
'injury in fact'-an invasion of a legally-protected interest which
is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct complained of-the
injury has to be fairly traceable to the challenged action of the
defendant and not the result of the independent action of some
third party not before the court. Third, it must be likely, as op-
posed to merely speculative, that the injury will be redressed by
a favorable decision. Id. at 560-61, 112 S.Ct. at 2136. "The
party invoking federal jurisdiction bears the burden of
establishing these elements." Id. (citing FW/PBS, Inc. v. Dallas,
493 U.S. 215, 231, 110 S.Ct. 596, 601-08, 107 L.Ed.2d 603 (1990)).
The appropriate focus in the case at bar is on the first element-
"injury in fact."
The United States Supreme Court has stated that in deciding
whether a case is ripe, it looks primarily to two considerations:
"the hardship to the parties of withholding court consideration"
and "the fitness of the issues for judicial decision." Abbott Lab.
v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681
(1967). In Abbott, the seminal case on the ripeness doctrine, the
Court explained that the "basic rationale" of the ripeness
requirement is "to prevent the courts, through avoidance of
premature adjudication, from entangling themselves in abstract dis-
agreements." Id. at 148, 87 S.Ct. at 1515.
In deciding whether this court can and should exercise subject
matter jurisdiction over Plaintiffs' pre-enforcement challenge to
the constitutionality of a federal statute, the court is called
upon to weigh two competing concerns. On one hand, if the court
will not rule on a pre-enforcement challenge, the plaintiffs must
either forego activity which they believe to be constitutionally
protected or else subject themselves to criminal prosecution and
take their chances that their position will be accepted by the
court before which they are brought. The United States Supreme
Court described this dilemma in Steffel v. Thompson, 415 U.S. 452,
94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), as the Court considered
whether to hear a First Amendment-based pre-enforcement challenge
to a state criminal statute:
[A] refusal on the part of the federal courts to intervene
when no state proceeding is pending may place the hapless
plaintiff between the Scylla of intentionally flouting state
law and the Charybdis of forgoing what he believes to be
constitutionally protected activity in order to avoid becoming
enmeshed in a criminal proceeding.
Id. at 462, 94 S.Ct. at 1217. The same difficulty obtains where,
as here, the plaintiff challenges a federal statute. However, if
one accepts the premise that Congress and the federal courts are
more likely than their State counterparts to follow the dictates of
the United States Constitution-the premise which underlies the
Supremacy Clause and the post-Civil War trend toward federaliza-
tion-this difficulty may be somewhat less pronounced where the
allegedly unconstitutional statute is a federal one. And, of
course, the chilling effect on the plaintiff's conduct could be
expected to decrease in proportion to the clarity of the alleged
constitutional violation, ie., when the fog between Scylla and
Charybdis lifts, the course between them is more easily navigated.
If Congress were to enact a law which was patently
unconstitutional, one would expect that many would be willing to
risk prosecution for breaking it, confident that the courts would
strike the measure down.
To be weighed against these navigational concerns are the
firmly-established policies which underlie the "case" or
"controversy" requirement of Article III of the Constitution. The
United States Supreme Court has repeatedly stressed the importance
of judicial self-restraint in preserving the balance of power among
the three branches of government and promoting judicial efficiency,
and the Court has held that there are prudential considerations
beyond the case or controversy requirement which militate against
the giving of advisory opinions. Chief Justice Warren explained
that the "words [cases and controversies] define the role assigned
to the judiciary in a tripartite allocation of power to assure that
the federal courts will not intrude into areas committed to the
other branches of government." Flast v. Cohen, 392 U.S. 83, 95, 88
S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968). The doctrines of standing
and ripeness also conserve judicial resources, allowing the federal
courts to focus their attention on the matters most deserving of
review. Refusal by the court to decide cases involving conjectural
or hypothetical injury improves judicial decision-making by
sharpening the focus of the court's inquiry, and it promotes
fairness to individuals who are not litigants before the court by
limiting the scope of decisions to factual situations which have
been presented to the court. As Justice Frankfurter noted, "The
best teaching of this Court's experience admonishes us not to en-
tertain constitutional questions in advance of the strictest
necessity." Poe v. Ullman, 367 U.S. 497, 503, 81 S.Ct. 1752, 1756,
6 L.Ed.2d 989 (1961) and Parker v. County of Los Angeles, 338 U.S.
327, 333, 70 S.Ct. 161, 16364, 94 L.Ed. 144 (1949). Justice Black
commented in Younger v. Harris, 401 U.S. 37, 52, 91 S.Ct. 746,
7,54, 27 L.Ed.2d 669 (1971), "The power and duty of the judiciary
to declare laws unconstitutional . . ., broad as it is, does not
amount to an unlimited power to survey the statute books and pass
judgment on laws before the courts are called upon to enforce
them."
The Supreme Court has balanced these two considerations,
setting forth guiding principles to determine the justiciability of
a pre-enforcement challenge to a criminal statute. "A plaintiff
who challenges, a statute must demonstrate a realistic danger of
sustaining a direct injury as a result of the statute's operation
or enforcement." Babbitt v. Farm Workers, 442 U.S. 289, 298, 99
S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979) (citing O'Shea v.
Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674
(1974)). If prosecution is "certainly impending" or if "there
exists a credible threat of prosecution" under the challenged
statute, a plaintiff has standing, Babbitt, 442 U.S. at 298, 99
S.Ct. at 2308-09, but "'persons having no fears of state
prosecution except those that are imaginary or speculative are not
to be accepted as appropriate plaintiffs.'" Id, (citing Younger v.
Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 749, 27 L.Ed.2d 669 (1971);
Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113
(1969)). "'The party who invokes the power (to annul legislation
on grounds of its unconstitutionality] must be able to show not
only that the statute is invalid, but that he has sustained or is
immediately in danger of sustaining some direct injury as the
result of its enforcement."' Poe v. Ullman, 367 U.S. 497, 505, 81
S.Ct. 1752, 1757, 6 L.Ed.2d 989 (1961) (quoting Massachusetts v.
Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078
(1923)). The United States Court of Appeals for the Sixth Circuit,
too, has noted these principles. "Ordinarily, if criminal
prosecution is threatened there exists the requisite controversy.
However, if the possibility of prosecution is abstract or distant,
then no controversy. exists." Parker v. Turner, 626 F.2d 1, 5 n. 11
(6th Cir.1980) (internal citations omitted).
In Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39
L.Ed.2d 505 (1974), Justice Stewart with whom Chief Justice Burger
joined, concurring, stressed the importance of a "genuine threat of
enforcement."
Our decision today must not be understood as authorizing
the invocation of federal declaratory judgment jurisdiction by
a person who thinks a state criminal law is unconstitutional,
even if he genuinely feels 'chilled' in his freedom of, action
by the law's existence, and even if he honestly entertains the
subjectively belief that he may now or in the future be
prosecuted under it.
Id. at 476, 94 S.Ct. at 1224. Justice Stewart also predicted,
"Cases where such a 'genuine threat' can be demonstrated will, I
think, be exceedingly rare." Id. at 476, 94 S.Ct. at 1224. This
prediction has proved accurate, especially in pre-enforcement
challenges not invoking the First Amendment. In the more than
twenty years since Justice Stewart made his forecast, only one
plaintiff bringing such a challenge has been found to have
standing. [footnote 1]
This court holds that the case at bar is not one of the
exceedingly rare instances outside of the First Amendment context
in which the plaintiffs have met their burden of showing the
requisite degree of injury to support a finding of standing for a
pre-enforcement challenge to a criminal statute. Several
plaintiffs have submitted no evidence whatsoever, beyond the bare
allegations in the complaint, that they have or will suffer injury.
The plaintiffs bear the burden of proving jurisdiction in order to
survive a motion challenging subject matter jurisdiction, Moir v.
Greater Cleveland Regional Transit Auth., 895 F.2d 266, 269 (6th
Cir. 1990) (citing Rogers v. Stratton Indus. Inc., 798 F.2d 913,
915 (6th Cir.1986)), and, unlike under Fed.R.Civ.P. 12(b)(6), no
presumptive truthfulness attaches to the allegations in the
complaint. Only Plaintiff D.C. Engineering, Inc., through its
president Phillip C. Martel; Plaintiff Glenn Duncan; and Plaintiff
National Rifle Association of America, through its members James G.
Giragosian, Stefan B. Tahmassebi, and Kevin M. Cunningham, have
submitted declarations attesting to the injuries they have
suffered.
Martel's declaration states that D.C. Engineering, Inc. is
prohibited from manufacturing certain ammunition feeding devices
and that, if the ban were found unconstitutional as applied to
intrastate sales, D.C. Engineering "would be ready, willing and
able to transfer such, magazines in intrastate commerce to fellow
residents in Michigan." These assertions do not describe a
realistic danger of sustaining a direct injury as a result of the
statute's operation or enforcement; instead, they merely allege
that D.C. Engineering would change its practices if the statute
were found unconstitutional. This is not enough. Duncan's
declaration states that the ban "has directly and immediately
affected our business"; that the law is confusing and arbitrary;
that, if the ban is invalid, he stands ready to begin at once to
assemble prohibited firearms; and that the statute has restricted
his business activities. Giragosian alleges that he feels
inhibited from engaging in certain conduct and that, in his
opinion, the statute is vague. Tahmassebi alleges that he is
inhibited from engaging in certain activities because he fears
prosecution. Cunningham, an attorney, relates hearsay statements
allegedly made by Mr. Ed Owen at the BATF, who allegedly informed
Cunningham that a person could be prosecuted if he installed a
folding stock on a Mini-14, something that Cunningham's client,
Tahmassebi, alleged that he would like to do. The court finds that
none of the declarants has alleged sufficient threat of direct
injury to invoke the jurisdiction of this court.
The Supreme Court has stated that an association has standing
to bring suit on behalf of its members when: "(a) its members would
otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization's
purpose; and (c) neither the claim asserted nor the relief
requested requires the participation of individual members in the
lawsuit." Hunt v. Washington State Apple Advertising Comm'n, 432
U.S. 333, 344, 97 S.Ct. 2434, 2442, 53 L.Ed.2d 383 (1977). Because
none of the declarations submitted by NRA members allege injury
sufficient to confer standing on that individual member in his own
right, the declarations are insufficient to confer standing on the
National Rifle Association of America. Thus, the court finds that
Plaintiffs Michigan United Conservation Clubs, Olympic Arms, Calico
Light Weapons Systems, Navegar, Inc., Ammo Dump, Charles Duncan,
James E. Flynn, James J. Fotis, Thomas L. Heritier, and Craig D.
Sandler have no standing because they have not come forward with
any evidence showing that they have suffered an actual or imminent,
concrete and particularized injury in fact. Though Plaintiffs D.C.
Engineering, Inc., Glenn Duncan, and the National Rifle Association
of America have come forward with declarations, those declarations
are in sufficient to establish standing because they do not show a
credible threat of prosecution or other direct, cognizable injury.
Even if the allegations in the complaint were taken as true,
as under the standard for a motion to dismiss under Fed.R.Civ.P.
12(b)(6), the plaintiffs have not established the requisite actual
or imminent, concrete and particularized injury in fact. Though
they have pleaded that they wish to engage in proscribed conduct
and that their actions have been chilled by the statute, they have
not alleged that they face an immediate threat of prosecution.
Rather, the threat of prosecution, if any, is speculative,
abstract, and distant. Indeed, Plaintiffs allege that they "are
unable and unwilling ... to obtain and possess the firearms and
large capacity ammunition feeding devices prohibited by the
statute." (para. 46). Since the plaintiffs have affirmatively
disavowed any intent to engage in the proscribed conduct, the court
is constrained to find that they will not face prosecution, and,
thus, they suffer no legally cognizable injury. The "chilling
effect," which the plaintiffs may have experienced, does not
constitute a legally cognizable injury. "[A]llegations of a
subjective 'chill' are not an adequate substitute for a claim of
specific present objective harm or a threat of specific future
harm." Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 2325-26,
33 L.Ed.2d 154 (1972). This is because "[e]very criminal law, by
its very existence may have some chilling effect on personal
behavior. That was the reason for its passage." Doe v. Duling,
782 F.2d 1202, 1206 (4th Cir.1986). See also Younger v. Harris, 401
U.S. 37, 42, 91 S.Ct. 746, 749-50, 27 L.Ed.2d 669 (1971)
(dismissing plaintiffs who had not been indicted, arrested or even
threatened by the prosecutor, despite those plaintiffs' feeling of
inhibition in their conduct caused by the existence of the criminal
prohibition they contended was unconstitutionally vague.)
Similarly, the allegations of Plaintiffs Olympic Arms and Calico
Light Weapons Systems that they "involuntarily changed the names of
their firearms" and "involuntarily ceased manufacturing firearms
whose configuration might fit the generic criteria definition,"
(para. 48), show only a subjective "chilling effect," not a legally
cognizable injury in fact.
In another part of their complaint, Plaintiffs allege that
they "will purchase, firearms, including those on the enumerated
list of proscribed firearms." (para. 55). Unsupported by evidence
and directly contradicted by other portions of the complaint, (see
para. 46), this allegation, too, even if taken as true, is
insufficient to confer standing. "Such 'some day' intentions-
without any description of concrete plans, or indeed any specifi-
cation of when the some day will, be-do not support a finding of
'actual or imminent' injury that our cases require." Lujan v.
Defenders of Wildlife, 504 U.S. 555, 564, 112, S.Ct. 2130, 2138,
119 L.Ed.2d 351 (1992).
The court also finds that the case at bar is not ripe for
adjudication. Because the Crime Control Act does not implicate
First Amendment rights, it may be challenged for vagueness only as
applied. "It is well established that vagueness challenges to
statutes which do not involve First Amendment freedoms must be
examined in the light of the facts of the case at hand." United
States v. Mazurie, 419 U.S, 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d
706 (1975) (citing United States v. Nat'l Dairy Products Corp., 372
U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963)). [footnote 2] Because
the 1994 Amendments have not yet been applied to the plaintiffs, a
determination of their vagueness would be premature.
Two other United States District, Courts, facing similar
challenges to the statute at issue here, have come to the same
conclusion as this court reaches today. See San Diego County Gun
Rights Comm. v. Reno, No. 9527 H (S.D.Cal. May 18, 1995) (appeal
pending) and Oefinger v. Baker, No. 86-1396 (D.D.C. October 29,
1986) (finding no subject matter jurisdiction for a challenge to a
different amendment to the Gun Control Act, 18 U.S.C. section 921
et seq., which prohibited the transfer or possession of machine
guns). A United States Magistrate Judge came to the same conclusion
in Kropelnicki v. United States of America, No. 1:94-CV-186
(W.D.N.C. June 8, 1995) (review by District Judge pending).
The court is unpersuaded by the cases cited by the plaintiffs
in support of their position that their claims are justiciable.
Frank v. United States, 860 F.Supp. 1030 (D.Vt.1994) and Printz v.
United States, 854 F.Supp. 1503 (D.Mont.1994)-both suits brought by
sheriffs to challenge the constitutionality of provisions of the
Brady Act requiring them to conduct a background check in
connection with firearms transactions-are inapposite because
neither case found standing to challenge the criminal portions of
the act. The sheriffs, were able to show injury resulting from the
background check requirement: each was required to divert resources
away from his state-mandated duties and expend those resources in
a manner inconsistent with state statutory duties. Indeed, the
Frank court expressly found that Sheriff Frank did not have
standing to challenge, on Fifth Amendment grounds, the criminal
components of the act. Frank, 860 F.Supp. at 1036.
Pennell v. City of San Jose, 485 U.S. 1, 108 S.Ct. 849, 99
L.Ed.2d. 1 (1988) and National Organization for Women, Inc. v.
Scheidler, - U.S. -, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994) are also
inapposite because both were decided under Fed.R.Civ.P. 12(b)(6)-
under which all facts must be taken as true-rather than under Rule
12(b)(1), and neither Pennell nor NOW involved a pre-enforcement
challenge to a criminal statute. Pennell was a suit by landlords
and a landlords' association challenging a rent control ordinance,
while NOW was an action under RICO for alleged conspiracy to shut
down abortion clinics.
Plaintiffs' reliance on Pierce v. Society of Sisters, 268 U.S.
510, 45 S.Ct. 571, 69 L.Ed. 1070.(1924) and Roe v. Wade, 410 U.S.
113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) is misplaced because these
cases deal with exceptions to the usual rule that one must allege
a threat of imminent prosecution in order to have standing. Pierce
involved a challenge by a Catholic school to the constitutionality
of a statute which required children to attend public school and
which subjected the parents to criminal penalties if the parents
did not send their children to public school. The school, unlike
the plaintiffs in this case, could not have challenged the
constitutionality of the statute in their defense of a criminal
prosecution, since the school was not subject to prosecution.
Furthermore, the Court focused on the economic interest of the
school and found "without doubt enforcement of the statute would
seriously impair, perhaps destroy, the profitable features of
appellees' business and greatly diminish the value of their
property." Id. at 531, 45 S.Ct. at 572. The plaintiffs in the case
at bar have not alleged economic injury stemming from the statutes
they challenge. In Roe, standing was found because the alleged
injury was said to be "capable of repetition yet evading review,"
a circumstance which cannot be said to be present in the case at
bar.
In their brief, exhibits, and oral argument, the plaintiffs
emphasized their view that the 1994 Amendments to the Gun Control
Act of 1968 are poorly conceived and unartfully drafted. The court
does not-indeed, may not, under the Constitution-rule on these
contentions. In ruling that the plaintiffs have failed to
establish that their claims are justiciable, the court makes no
comment on the merits of their claims.
V. Conclusion
The court finds that Plaintiffs' claims are not justiciable.
Accordingly, Defendants' Motion to Dismiss or for Summary Judgment
on the Question of Jurisdiction will be granted.
FOOTNOTES
1. That case, Mack v. United States, 856 F.Supp. 1372, 1377
(D.Ariz. 1994), is currently on appeal. The Mack court held that
a sheriff had standing to challenge the criminal penalties in the
Brady Act, even though he was not facing an imminent threat of
prosecution, saying simply, "Mack is under threat of criminal
penalties and thus possesses an injury that can be redressed. The
agency's interpretation to the contrary is entitled to no
deference." Id. Every other court facing the issue addressed in
Mack, viz., whether a sheriff has standing to challenge the
criminal penalties in the Brady Act, came to the opposite
conclusion, finding that the case was not justiciable. See Frank
v. United States, 860 F.Supp. 1030 (D.Vt.1994); Printz v. United
States, 854 F.Supp. 1503 (D.Mont.1994); McGee v. United States, 863
F.Supp. 321, 324 (S.D.Miss.1994); Koog v. United States, 852
F.Supp. 1376, 1388 (W.D.Tex.1994); and Romero v. United States, 883
F.Supp. 1076, 1079 (W.D.La.1994).
Springfield Armory, Inc. v. City of Columbus, 29 F.3d 250 (6th
Cir. 1994) may be another example. Springfield Armory was a
challenge by two manufacturers, a dealer, and two potential
purchasers of weapons to the constitutionality of a Columbus city
ordinance that bans assault weapons. The court did not consider
the question of standing on appeal.
2. One paragraph of Plaintiffs' does make reference to the First
Amendment. Paragraph 28 alleges, "If the language creating the
prohibition on firearms 'known as' these designations, is taken to
mean that a manufacturer is forbidden to write that name on a
firearm, and means nothing more their this, then this prohibition
violates the First Amendment to the Constitution of the United
States." However, Plaintiffs' complaint cannot be fairly read to
state a claim under the First Amendment. Paragraph 28 makes no
reference to non-manufacturer plaintiffs, and the manufacturer
plaintiffs do not allege-and the court does not suspect-that their
concerns would be alleviated if only they could write certain names
on firearms which do not otherwise violate the statute. Rather, it
appears that the plaintiffs' difficulty with the statute is its
prohibition on manufacture, transfer, and possession of
semiautomatic firearms, not on any asserted prohibition on speech.